Michael Carper ’13 – Our course of study this semester has straddled between history and law. We may discuss current legal issues or case law in class, but it’s to conclude historical and legal development, and then project issues for the future. For instance, our last unit focused on equity’s takeover of common law in civil cases–that is, how the more flexible procedures of equity replaced the rigid writs of the common law. We would then look at a “current” application of this trend. Today and yesterday’s meetings with current legal professionals in London provided an incredibly timely issue with historical bearings. But first, a parallel example from our course work, which demonstrates the broader theme this current example falls under.
One odd theme that I’ve noticed in class, as we’ve studied these trends of legal development, is the unplanned accumulation of structure, and then resistance to it. Indeed, the replacement of writs with equity’s discovery of evidence is a perfect example of this. Discovery was intended as a more discretionary way to determine the merits of a case before starting, much more so than writs, which couldn’t help but bring on a full trial. Based on the potential benefits awarded to the winner, the costs paid by the loser, and the actual existence of evidence, the judge may decide to grant summary judgment, that is, stop the case, or let it go through.
And yet, the mere method of discovery is subject to structure. We looked at the Supreme Court case Bell Atlantic v. Twombly (2007) which dealt with how much “evidence” the plaintiff is required to present in order to stop a summary judgment–that is, to make the trial process go through. Despite the fact that the charge at hand, anti-competitive activity, isn’t easily discernible without the discovery process, the Court ruled that the evidence the plaintiffs could present before discovery as evidence wasn’t sufficient. Discovery, like much of equity, was supposed to avoid rigid, impractical adherence to rules. But as it progresses, it begins to resemble what it was supposed to replace. It seems the Western legal system will always be destined for rigidity.
What does this have to do with London? Yesterday, we took a tour from a solicitor-turned-tour guide. Solicitors in the English legal system counsel clients. They do everything except argue in front of a judge or jury–which barristers do. We met a barrister yesterday as well, who elaborated on the divide between barristers and solicitors. Barristers only answer to the court, and are hired by solicitors to advocate in it. They’re self-employed and have no contact with the clients. There’s greater risk, and thus greater reward. Chris admitted a certain sense of superiority over solicitors.
Today, we met some solicitors who are partners in Prof. Himsel’s international law firm, Faegre Baker Daniels. John and Stephen attributed most typical “lawyer” work, like giving counsel, collecting evidence, and drafting documents to solicitors. However, when they prepare for trial, solicitors have to work with barristers to prepare the case–since the solicitors have knowledge about the specific case and client, while barristers know the law and how it will affect the case and client.
They remarked that the divide between barristers and solicitors is beginning to crumble. Solicitors can be trained to argue in court, while barristers can be hired in a solicitor-type role. A large client might want both in-house, in order to avoid outside counsel and secure the most expansive representation. The tasks relegated to each are no longer unique. Both Chris and John and Stephen foresaw greater fusion of the roles
I see this is as yet another example of resistance to structure. The divide between solicitors and barristers is result of the long struggle between law and fact. In the English Common Law, the jury was supposed to find only fact, not law. The instructing judge was supposed to explain the law. Yet this division of personnel overlooks the complicated relationship between law and fact, and the flexibility required to apply the law to new facts. Equity tried to solve this procedural by granting the power to decide both to the sitting judge, albeit at separate levels. However, the personnel problem, in the U.K., resides. Nowadays, barristers are supposed to explain the law, while solicitors know the facts. Yet if they have to work together, why make a hard distinction between them–and why hire two lawyers?
It may be that in 20 or 30 years, the historical divide between counsel and advocate will be further eroded. And though it’s a current event in law, it’s one rich with historical development and parallels. This particular intersection of law and history was only apparent upon our visit here. It came straight from the horse’s mouth, from lawyers who are actively intertwined with these developing legal trends. It wouldn’t have been possible without a trip here.
